Judge: Kevin C. Brazile, Case: 22STCV22928, Date: 2023-02-15 Tentative Ruling

Hearing Date: February 15, 2023

Case Name: Kaplan v. Gimelstob

Case No.: 19STCV19647

Matter: Demurrer

Moving Party: Randall Kaplan and Madison Kaplan

Responding Party: Justin Gimelstob

Notice: OK

Ruling: The Demurrer is overruled.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an action arising from a fist fight during Halloween trick-or-treating.  On November 8, 2022, Justin Gimelstob filed a Fourth Amended Cross-Complaint (“4ACC”) against Randall Kaplan and Madison Kaplan for (1) assault, (2) battery, (3) equitable indemnity, (4) tort in essence, (5) intentional interference with contractual relations, (6) intentional interference with prospective economic advantage, (7) defamation per se, and (8) defamation per quod.  

The Kaplans demur to the 4ACC’s fourth through eighth causes of action for uncertainty and failure to state sufficient facts.  

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

1. Tort in Essence

In relation to a criminal proceeding against Gimelstob arising from the trick-or-treat incident, Gimselstob alleges, “Kaplan engaged in extensive witness tampering with regard to his interactions with Pete. Kaplan had Pete enter into various agreements in which he bribed her to not testify against Kaplan or Madison, knowing full well that Pete had information that would be exculpatory to Gimelstob. Initially Kaplan’s bribe money was just $1,000, but he thereafter substantially increased that bribe money to $30,000 when he learned further that Pete was seeking to provide necessary testimony regarding Kaplan’s tortious and criminal conduct.”

“A tort in essence is the breach of a nonconsensual duty owed another. Violation of a statutory duty to another may therefore be a tort and violation of a statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the public for whose benefit the statute was enacted may bring the action.”  (Laczko v. Jules Meyers, Inc. (1969) 276 Cal.App.2d 293, 295.)

Penal Code § 138(a) states, “Every person who gives or offers or promises to give to any witness or person about to be called as a witness, any bribe upon any understanding or agreement that the person shall not attend upon any trial or other judicial proceeding, or every person who attempts by means of any offer of a bribe to dissuade any person from attending upon any trial or other judicial proceeding, is guilty of a felony.”

The Court believes a proper cause of action has been asserted based on the duties contemplated by Pen. Code § 138.  The Kaplans’ arguments to the contrary primarily raise factual disputes.  

2. Intentional Interference with Contract/Prospective Economic Advantage

To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.  (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

The elements of a claim for intentional interference with prospective economic advantage are “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.”  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (internal quotation marks omitted).)  “To establish a claim for interference with prospective economic advantage . . . a plaintiff must plead that the defendant engaged in an independently wrongful act.”  (Id. at p. 1158.)  An “act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable standard.”   (Id. at p. 1159.)

The Kaplans argue these claims fail because they rely on the dissemination of victim impact statements to the media, which is privileged conduct under Civ. Code § 47(d).

Gimelstob argues that these claims also rely on the dissemination of this information to individuals and the public at large.  In turn, the Kaplans argue that only dissemination to the media is alleged to have caused damages.

The 4ACC states, “Kaplan has sent similar packages and/or has provided other contacts of Gimelstob with copies of the two defamatory VIS and/or the Transcript of the plea and sentencing hearing at which Kaplan and Madison made their highly inflammatory and false accusations about Gimelstob”  (4ACC ¶ 72), and that “Kaplan has also sent to Gimelstob’s professional and personal contacts copies of the news articles that were written following Walsh’s dissemination of the two VIS’s and Transcript to the press.”   (4ACC ¶ 73.)  Resulting damages are pled.  (See 4ACC ¶ 79 [“After Kaplan disseminated his (and Madison’s) VIS’s to Walsh with instructions to have them widely circulated VIS’s, Gimelstob’s employers approached him with grave concerns about the contents of what had been distributed by Kaplan.”].)  Therefore, the Demurrer is overruled.

3. Defamation 

The Kaplans argue that “Gimelstob fails to allege to whom the allegedly defamatory statement were made, when they were made, or how they were made, or how such specific publications cause him any harm. As such, the FAXC fails to plea sufficient facts showing either of the Kaplans published any of the statements at issue under the meaning of Civil Code sections 45 and 46, or how such publications cause him any harm.”

The tort of defamation consists of (1) a publication that is (2) false, (3) defamatory, and (4) unprivileged, and that (5) has a natural tendency to injure or that causes special damage.  (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)  

The Kaplans’ arguments lack merit.  Gimelstob sufficiently alleges that Madison stated in 2022 that Gimelstob’s conduct caused her to have a miscarriage.  The defamation claims incorporate allegations that the Kaplans disseminated this statement to Gimelstob’s business contacts.  

4. Summary 

The Demurrer is overruled.  An answer is to be filed within twenty days.  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.